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JAMMU AND KASHMIR HIGH COURT
Pankaj Mithal, CJ. and Sanjay Dhar, J.
Villagers of Kanli-Bagh Baramulla —Petitioner
Versus
Union Territory of J&K and Ors. —Respondents
OWP No.2084 of 2018
Decided on 15.2.2022
Counsel for the Parties:
For the Petitioners:Mr. B.A. Misri, Advocate
For the Respondens Nos.1 to 4:Mr. D.C. Raina, Advocate General with Ms. Asifa Padroo, AAG
For the Respondent(s) No.5: Mr. Sajad A. Geelani, Dy. AG
IMPORTANT POINT
Acquisition of land—Acquisition proceedings in its entirety are not liable to be quashed only for reason that final award in terms of Act has not been passed even though statutory period for making award has elapsed.
Headnote:
Land Acquisition Act, 1894 – Section 11 – – Acquisition of land – Petitioners have invoked writ jurisdiction of this Court for quashing of entire acquisition proceedings in respect of about 150 Kanals and 03 Marlas of land which was notified for acquisition for public purpose of establishing a Housing Colony at Sangri in Baramulla – Only issue which crops up for consideration is whether respondents can sleep over the matter without pronouncing a final award depriving petitioners from right to receive fair and reasonable compensation for acquired land.
Held: It is an alarming situation that State is acquiring private land without payment of full compensation. This kind of action or omission on the part of the State authorities is not acceptable and cannot be allowed to continue for an indefinite period. We deprecate such practice and expect that the State would henceforth take all possible measures to ensure passing of an award within a reasonable time and payment of fair compensation to the persons interested where ever the land is acquired.
The acquisition proceedings in its entirety are not liable to be quashed only for the reason that the final award in terms of the Act has not been passed even though the statutory period for making the award has elapsed when by virtue of Section 17 of the Act, possession of the acquired land has already been taken and the vesting is complete. On this ground not even the tentative award could be quashed. There is no purpose to quash it as it would merge in the final award. There is no justification for directing to take up fresh acquisition proceedings as the acquisition is already over. The prayer regarding initiation of fresh proceedings for acquisition was not accepted by the Court in the earlier round of litigation and is apparently barred on the analogy of principles of constructive res-judicata. The relief to grant rent @ Rs.10,000/Kanal/year is also not admissible for the reason that under the Act petitioners are only entitled to only monitory compensation and not anything else.
In view of the above, the villagers may not be entitled to any of the reliefs specifically claimed in the present writ petition, nonetheless, in view of the residuary prayer to grant any other relief that may be deemed fit and suitable for the court and the power of the court to mould the relief so as to do justice to the parties, the court is left with no option but to make the interim mandamus absolute by issuing a writ in the nature of mandamus commanding the State authorities to frame and pronounce the final award in respect of the above acquisition in accordance with the existing law within a period of three months from the date a copy of this order is produced before the Chief Secretary and we hope that the Chief Secretary under whom all the departments of the State function, would take positive action in the matter and see to it that the award as directed is passed and stiff action is taken against all those officers, who were involved and responsible for not allowing the award to be passed immediately after the tentative award had been prepared and announced.
The villagers would be entitled to and paid compensation according to the final award along with all statutory benefits including the interest within a period of one month of the pronouncement of the final award after adjusting the amount which had already been paid to them under the tentative award.
The writ petition is allowed with exemplary costs of Rs. 10.00 lakhs for dragging the villagers in unnecessary litigation for decades and for depriving them of their property without adequately compensating them for such a long period. (Paras 26, 27, 28, 29 and 30)
Result: Writ Petition allowed.
JUDGMENT
Pankaj Mithal, CJ.—The petitioners are residents of village Kanli Bagh, Baramulla. They have invoked the writ jurisdiction of this Court for the quashing of the entire acquisition proceedings in respect of about 150 kanals and 03 marlas of the land which was notified for acquisition for the public purpose of establishing a Housing Colony at Sangri in Baramulla.
2. The petitioners have also prayed that the tentative award dated 17.03.1998 be also quashed and a writ of mandamus be issued to the respondents to initiate fresh proceedings for acquisition of the aforesaid land and to pay compensation as per the prevailing market rate.
3. A further prayer has been made directing the respondents to pay rent @ Rs. 10,000/- per kanal per year for the aforesaid land as the possession of it was taken over pursuant to the notifications to acquire the above land.
4. In the writ petition, as no counter affidavit was filed by any of the respondents, the court in compelling circumstances issued an ad interim mandamus commanding the respondents, specially the Assistant Commissioner (Revenue), Baramulla to frame the final award in accordance with law in respect of the above acquisition within a period of one month or to show cause by filing counter affidavit within the same period.
5. Briefly stated, the petitioners have preferred this writ petition alleging that by a notification dated 03.02.1978, an area of 220 kanals and 18 marlas was notified for acquisition. Subsequently, vide corrigendum dated 20.01.1991/1992, the area was reduced to 150 kanals and 03 marlas. In respect of the said acquisition, a final declaration under Section 6 of the Land Acquisition Act (hereinafter referred to as ‘the Act’) was issued on 27.05.1978. The Collector, Housing and Urban Development Department, Srinagar prepared a draft award on 15.10.1982, in terms of which a tentative award was issued on 17.03.1998 directing for payment of compensation @ Rs. 5,000/- per kanal with 15% Jabrana (solatium). On the aforesaid amount, simple interest @ 4% was directed to be paid from July 1978 to July 1985/1995, probably for the period of possession but till date no final award has been pronounced as is mandatory under Section 11 of the Act for completing the acquisition proceedings.
6. It is important to note that the petitioners have previously filed OWP No. 613 of 2003, villagers of Kanlibagh vs. State and Others, for issuing a writ in the nature of mandamus commanding the State respondents to initiate fresh acquisition proceedings in respect of the aforesaid land and to pay compensation to the petitioners at the prevailing market rate of Rs. 5.00 lakhs to Rs. 6.00 lakhs per kanal along with 15% solatium and 18% interest.
7. In the said writ petition, no response was filed by the State-respondents and the Court had to finally decide the said writ petition without having the version of the State vide its judgment and order dated 09.12.2009 with the direction to the State-respondents to look into the matter in accordance with the mandate of the statute occupying the field and consider the claim of the petitioners in the facts of the case in accordance with the mandate of the statute and to take a decision thereon within a period of two months from the date the copy of the judgment is served on the State-respondents.
8. When no consideration was accorded by the State-respondents to the grievance of the petitioners pursuant to the above directions, the petitioners initiated contempt proceedings.
9. In the said contempt petition No. 195 of 2010, statement of facts was filed on behalf of the respondents, wherein it was admitted that the aforesaid land was notified for acquisition in 1978 and a tentative award was issued on 17.03.1998 @ Rs. 5,000/- per kanal. The award has not been approved by the Divisional Commissioner and, as such, a request has again been made on 09.07.2011 to expedite the approval and as soon as the approval from the Government is received, necessary
